Common Ethical Issues To Consider When Researching Jurors And Witnesses On Social Media

Social media websites have quickly evolved into an invaluable resource for attorneys searching for useful information they can use to disqualify jurors or impeach particular witnesses. Taking certain actions while conducting legal research on social media, however, could ultimately result in negative consequences for an attorney.

Common sense is a good place to start when determining what’s ethical and what’s not, but what about those gray areas? Here are some general pointers to follow when researching witnesses or jurors on social media platforms.

Social Media Ethic #1: Researching publicly-available social media profile data

Generally, lawyers can access public, published social media content without risking ethics violations. In fact, the American Bar Association (ABA) and some state court opinions have held that publicly-available social media data is discoverable in its own right, even if the social network itself notifies particular witnesses or jurors that specific attorneys are researching their profiles.

Carino v. Muenzen from the Superior Court of New Jersey-Appellate Division even acknowledged that an attorney may actively research potential jurors’ public social media data at trial absent of any codified restrictions to the contrary. Other opinions, such as U.S. v. Watts, even state that law firms may hire outside consulting firms to conduct clandestine research on potential jury members so long as the firms avoided contact with the jurors and notified the court and adversarial parties about pertinent, undisclosed information bearing on any juror’s fitness to serve.  

Social Media Ethics #2: Accessing private or encrypted social media data

Problems will arise, however, for lawyers looking to initiate contact with witnesses and jurors on social media or to obtain private or encrypted data through deceit. Under ABA Model Rule 3.5(b) and similar state ethics codes, an attorney cannot unilaterally initiate communication with a judge, juror, prospective juror or other official unless authorized to do so by a court.

In the social media space, this covers messaging, tweeting at, and sending friend or connection requests to interested parties, whether by the attorney, a paralegal or other agent acting on behalf of the attorney.

Social Media Ethics #3: Advising clients to “clean up” their social media profiles

A great example of the risks of advising clients to “clean up” social media profiles can be seen in Allied Concrete Co. v. Lester.  The defendant’s attorney—through his paralegal—advised his client to delete a number of potentially-incriminating photos in order to avoid cooperating with the appellant’s discovery request. After the client deleted and then reinstated his Facebook page to comply with Allied Concrete’s subsequent discovery request, he followed his attorney’s instructions and deleted 16 public photos that were of interest to the appellant. In the end, however, the district judge fined the attorney over half a million dollars for his misconduct, and ordered his client to pay up to $200,000 in legal fees to Allied Concrete.  

As represented in the case, attorneys can face serious sanctions if they advise their clients to alter social media content to make their case appear better.

Social Media Ethics #4: Failing to provide data preservation advice that reflects current technologies

While Allied Concrete Co. v. Lester provides a clear warning for attorneys regarding sanctions for intentional spoliation, lawyers can still be found liable for not demonstrating adequate technical competence when advising their clients.

Twenty-six states have so far adopted amended ABA Model Rule 1.1, Comment 8’s advisory duty for attorneys to keep abreast of the benefits and risks of relevant legal technology into their state ethics codes. Florida even mandates that attorneys take at least 3 CLE credits per reporting period in technology competency. Therefore, it would be advisable to consult your state’s ethics rules to determine if you meet its minimum technological competency standards.

About Page Vault

Page Vault On Demand™, an easy way for legal professionals to submit a request for web content to be collected for their initial research or as evidence, can help to capture discoverable data during social media investigations. Each web capture comes with key metadata (IP addresses, time/date stamps, URLs) that further supports the authentication of the content and that can be used as admissible evidence in court. Learn more at www.page-vault.com/ondemand.

About Patrick Schweihs, Esq.

Patrick is a licensed Illinois attorney and U.S. Patent attorney, and is passionate about the adoption of new technologies in legal practice. He helps legal professionals better collect web content with Page Vault, and hosts webinars and CLEs about legal issues surrounding web evidence and best practices for working with web content to be used in cases.